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Archive for May 10th, 2017

Kevin Drum sums up the current situation in a post that has a truly great punch line

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Do read it now.

Written by LeisureGuy

10 May 2017 at 6:30 pm

It’s not just Comey: the scary past 24 hours in Trump-Russia, explained

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Alex Ward has a very interesting column at Vox:

The Comey firing is rightly dominating the news. Amazingly, though, it wasn’t the only major development in the ongoing and intensifying Trump-Russia scandal.

The official reason for FBI Director Jim Comey’s dismissal is that he mishandled the Hillary Clinton email investigation, something many Democrats surely agree with. But the more convincing explanation is that Comey had infuriated the president by having the FBI launch a formal criminal probe into the Trump campaign’s possible ties to Russia.

But the Comey story buried other huge Russia-related developments that came to light yesterday and this morning that you should really be following. What follows is a quick guide to what you need to know to stay on top of what happened — and why it all matters.

Tuesday night: federal prosecutors subpoena associates of Michael Flynn

Last night, CNN dropped a bombshell: Federal prosecutors issued grand jury subpoenas to colleagues close to Michael Flynn, Trump’s disgraced former national security adviser, asking for business records.

This is a really big deal. The investigation into Flynn’s ties with Russia has been ongoing since July, but this is indicates the probe is picking up steam and that prosecutors may be growing more confident that there’s enough out there to build a criminal case against the disgraced retired general. The focus appears to be on Flynn’s business relationships with people in Russia and Turkey.

That makes sense. Flynn already has a shady record with his own disclosures, financial and otherwise, and they involve exactly those two countries. He didn’t reveal a $45,000 payment for giving a speech in Moscow from Russia Today, a government-run news channel seen by many in the United States as a propaganda arm of the Putin regime. Flynn sat comfortably next to Vladimir Putin at the gala where he delivered his remarks.

After he was fired by Trump, Flynn revealed he was paid $500,000 to work as a foreign agent representing Turkish interests. He had not disclosed that information to the Justice Department.

Flynn also famously lied to Vice President Mike Pence about discussing US sanctions against Russia with Moscow’s Ambassador Sergey Kislyak before the administration began. News of that coming out was what led Trump to finally fire Flynn, who now holds the record for shortest tenure as national security adviser at 24 days.

It’s unclear what, if anything, the investigators will find. Frankly, asking for subpoenas is a common step in any investigation.

But that’s why this story is so big. Flynn was a close Trump associate who became one of the most powerful people in Washington, and investigators feel the need to take this routine step to keep investigating him. In other words, there is a there there, and so the investigators want to keep digging.

Fake news this is not.

Also Tuesday night: Senate investigators ask Treasury to look for any financial ties between Team Trump and Russia

To paraphrase Lester Freamon from The Wire, if you follow the money, you don’t know where it might lead you. That’s the advice Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, is taking.

“We’ve made a request, to FinCEN in the Treasury Department, to make sure, not just for example vis-a-vis the president, but just overall our effort to try to follow the intel no matter where it leads,” Warner told CNN.

“You get materials that show if there have been, what level of financial ties between, I mean some of the stuff, some of the Trump-related officials, Trump campaign-related officials and other officials and where those dollars flow — not necessarily from Russia.”

FinCEN stands for the Financial Crimes Enforcement Network, the arm of the Treasury Department with the hard task of tracking and stopping the illicit use of money, including money laundering, as well as focusing on the financial side of national security issues.

Getting FinCEN involved is a big step for those conducting the Russia-Trump team investigations.

So far, four people appear to be at the center of it all:

  1. Flynn, naturally
  2. Paul Manafort, Trump’s former campaign chair, who we already knew worked as a political consultant on behalf of Russian interests
  3. Roger Stone, a former Trump adviser who reportedly told Trump to fire Comey, and celebrated the news with a cigar
  4. And Carter Page, another former Trump adviser who found the Comey dismissal “encouraging”

Again, this seems like a logical step for any thorough investigation to take. That Warner made the ask is not the real story. That Warner felt it was appropriate to ask — because the investigation needed more information — is.

Amid all this Russia-related news, it would make sense for Trump to stay away from all things Russia. Well…

Wednesday: Trump met with Russia’s Foreign Minister Sergei Lavrov

Trump just had the highest-level in-person contact with a Russian government official since becoming president. . .

Continue reading.

Written by LeisureGuy

10 May 2017 at 6:29 pm

By firing James Comey, Trump has put impeachment on the table

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Matthew Yglesias writes in Vox:

The old saw that the cover-up is worse than the crime often obscures more than it reveals. But in the case of President Donald Trump’s firing of FBI Director James Comey, it carries an important element of truth. It escalates the administration’s Russia scandal, and, for the first time, provides indications of impeachable offenses.

Nothing we’ve seen credibly reported thus far about Trump and Russia would amount to an impeachable offense, and indeed, it’s not really clear what allegations of “collusion” on the campaign trail would really amount to even if proven.

Firing the FBI director in order to obstruct an ongoing investigation would be different.

That obstruction charge is, of course, unproven as of Wednesday afternoon. But the probable cause is everywhere. And it makes a sham of the notion that replacing Comey with a well-qualified director or continuing with existing congressional inquiries is a sufficient remedy.

There needs to be a separate investigation — featuring sworn testimony from the key players and subpoenas of documents — into why Comey was fired. Was it because Trump suddenly decided in mid-May that Comey’s handling of the Clinton emails was unforgivable, or was it because Trump was trying to obstruct justice?

The answer makes a huge difference.

Media reports suggest obstruction of justice

Anonymously sourced journalism is not the same thing as sworn testimony or hard evidence. But it’s also indispensable to uncovering official wrongdoing. And Tuesday evening and Wednesday morning already brought forth plenty of evidence of wrongdoing:

  • The New York Times reports that “days before he was fired, James B. Comey, the former F.B.I. director, asked the Justice Department for a significant increase in money and personnel for the bureau’s investigation into Russia’s interference in the presidential election.” NBC News says it can confirm that story, as have several other outlets.
  • CNN reports that grand jury subpoenas were “issued in recent weeks by the US Attorney’s Office in Alexandria, Virginia,” targeting business associates of former National Security Adviser Michael Flynn.
  • A separate New York Times report states that Attorney General Jeff Sessions “had been working to come up with reasons” to fire Comey since at least last week, which partially explains why he eventually settled on reasons that contradict all of his previous statements about Comey.
  • Trump himself contradicted the stated reasons for the firing on Wednesday morning when he said Comey wasn’t “doing a good job” running the FBI.
  • A CNN report that Trump has since disputed says that Trump discussed firing Comey with Roger Stone, a longtime Trump political adviser with whom Trump has officially cut ties, and that Stone urged him to fire Comey.
  • Josh Dawsey of Politico reports that Trump “had grown enraged by the Russia investigation, two advisers said, frustrated by his inability to control the mushrooming narrative around Russia.”

Some or all of this reporting may prove to be false. But it has all been published by credible journalists in credible publications. And it adds up to a very clear picture of a president deciding to fire an FBI director to obstruct an ongoing investigation and then stitching together a shaky rationalization for doing so.

Impeachable, if true

Impeachment is, of course, a political process rather than a judicial one. Trump will be impeached and removed from office if a critical mass of members of Congress want him to be, and not otherwise. There are no formal criteria.

But obstruction of justice featured heavily in the articles of impeachment that drove Richard Nixon from office, and also in the articles of impeachment that passed the House only to see Bill Clinton narrowly acquitted in the Senate. In short, it lies firmly in the American political tradition to regard possible obstruction of justice as a serious issue worthy of investigation in an impeachment context. . .

Continue reading.

There’s quite a bit more and it’s worth reading. The column concludes:

. . . The odds that a Congress under continued GOP control will pursue such questions seem slim. During the 2016 presidential campaign, few Republicans in Congress were under the delusion that Trump’s rise to prominence was a good thing for the conservative movement. They worried, overwhelmingly, that his erratic ways were going to drag them down with him.

Ever since Election Day, they have operated in a strange moral and intellectual miasma that’s led them to forget all that and invest their energy in defending him, believing that to be the best path forward for American conservatism. One can only hope at this point that they’ll reconsider before it’s too late. If not, America is going to need a different group of Congress members.

At Lawfare, Helen Klein Murillo considers the relevant question, “Was the Firing of James Comey Obstruction of Justice?

Written by LeisureGuy

10 May 2017 at 3:20 pm

Can a President’s Absolute Immunity be Trumped?

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Steve Vladeck and Benjamin Wittes write in Lawfare:

 It’s time to think hard about Nixon v. Fitzgerald.

Fitzgerald isn’t really part of the national security law canon; it’s a 1982 Supreme Court decision that is often cited for the proposition that the President has “absolute immunity” (meaning he cannot be sued in his personal capacity) for any acts he undertakes while he is President.

We’re about to experience a flood of litigation testing what the case really means.

For most of American history, a sitting President’s immunity from civil litigation has been a subject of academic curiosity, but little real-world interest. Presidents get sued daily, of course, but usually in their capacity as head of the federal government, where—for the most part—Congress has waived any immunity. They generally don’t get sued in a manner that seeks to hold them personally liable.

Fitzgerald is one of the reasons. Although the Court held 15 years after deciding Fitzgerald, in Clinton v. Jones, that the same principle didn’t immunize a sitting President from civil litigation (in federal court, anyway) arising out of acts he took before assuming office, the working assumption for the past 35 years has been that inauguration is a bright constitutional line, and that the President is categorically free from civil liability for misdeeds that take place on the far side of his oath.

The problem is that Fitzgerald does not quite say what it’s cited to mean—and neither does Jones. And Donald Trump’s peculiar personality and bizarre mixing of his personal and official personas seems sure to test the parameters of the extant doctrine.

Consider: He is already being sued for incitement to violence at a campaign rally. He has, according to more than a dozen women, sexually harassed or assaulted them—and one of his accusers is now suing him for defamation after he claimed that she fabricated the charges. He says things about people using his Twitter account, like that they illegally “wire tapped” him, that might normally give rise to a defamation suit. And he is, well, careless about certain ethics rules and business practices in a fashion that might normally create exposure—even while maintaining giant business holdings as President.

Recently, Quinta Jurecic wrote a lengthy post on Trump’s two Twitter personas as a modern presentation of the medieval notion of the “King’s Two Bodies.” Fitzgerald and Jones are legal manifestations of the same idea: That the executive has a human form no different from any other person’s and an institutional form that is untouchable.

But on a closer reading of both cases, we think that the doctrine of absolute presidential immunity has some important caveats—some of which may bear prominently upon some of the current suits against President Trump and some of which may give rise to others.  When you’re in Jones land and when you’re in Fitzgerald land turns out not be clear. And we think it likely that just how much immunity the president will receive under existing doctrine will depend more upon the nature of the specific claims than most commentators appear to have realized.

The Fitzgerald Ruling

In Fitzgerald, the Court faced the question of whether a discharged former Air Force employee could pursue a civil damages suit against former President Richard Nixon based upon a claim that he was fired at President Nixon’s specific behest in direct retaliation for his whistleblowing testimony before a congressional committee. The Supreme Court ruled, by a 5-to-4 vote, that Fitzgerald’s claims were barred by President Nixon’s absolute immunity from suit. The language of the decision is famously broad.

Writing for the Court, Justice Lewis Powell spent some time walking through the origins of official immunity doctrines, and the genesis of the Court’s prior recognitions of absolute immunity for judges when acting in their judicial capacity and prosecutors when acting in their prosecutorial capacities (along with the Constitution’s codification of comparable immunity for legislators). In light of those immunity doctrines and the unique structural role and constitutional status of the President of the United States, the Court concluded that Nixon was “entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” And although Justice White, in what for him was an unusually acerbic dissent, accused the majority of derogating its judicial role, Powell fired back that other mechanisms existed to ensure presidential fealty to legal constraints:

A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.

What activity does Fitzgerald cover? . . .

Continue reading.

Written by LeisureGuy

10 May 2017 at 2:11 pm

A little cannabis every day might keep brain ageing at bay

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Michael Le Page writes in New Scientist:

In some cultures, it’s traditional for elders to smoke grass, a practice said to help them pass on tribal knowledge. It turns out that they might just be onto something.

Teenagers who toke perform less well on memory and attention tasks while under the influence. But low doses of the active ingredient in cannabis, THC, might have the opposite effect on the elderly, reversing brain ageing and restoring learning and memory – at least according to studies of mice.

“We repeated these experiments many times,” says team leader Andreas Zimmer at the University of Bonn, Germany. “It’s a very robust and profound effect.”

Zimmer’s team has been studying the mammalian endocannabinoid system, which is involved in balancing out our bodies’ response to stress. THC affects us by mimicking similar molecules in this system, calming us down.

The researchers discovered that mice with genetic mutations that stop this endocannabinoid system from working properly age faster than normal mice, and show more cognitive decline. This made Zimmer wonder if stimulating the endocannabinoid system in elderly mice might have the opposite effect.

Brain boost

To find out, the team gave young (2-month-old), middle-aged (12-month-old) and elderly (18-month-old) mice a steady dose of THC. The amount they received was too small to give them psychoactive effects.

After a month, the team tested the mice’s ability to perform cognitive tasks, such as finding their way around mazes, or recognising other individuals.

In the control groups, which received no THC, the young mice performed far better than the middle-aged and elderly mice. But the middle-aged and elderly mice who had been given THC performed as well as the young mice in the control group.

Further studies showed that THC boosted the number of connections between brain cells in the hippocampus, which is involved in memory formation. “It’s a quite striking finding,” says Zimmer.

Age effect

But THC seemed to have the opposite effect in young mice: when they were given THC, their performance in some tasks declined.

Young people also perform worse in learning and memory tests in the hours and days after smoking cannabis, but a joint delivers far higher doses than the mice received. Claims that heavy marijuana use can permanently impair cognition are disputed.

Zimmer thinks his findings show that both too much and too little stimulation is harmful. The endocannabinoid system is most active in young mice (and people), so extra THC may overstimulate it. In older mice, by contrast, endocannabinoid activity declines, so a little THC restores it to optimum levels.

Human trial

The team’s findings aren’t that surprising, says neuropsychopharmacologist David Nutt of Imperial College London. Animal studies have shown that the cannabinoids the body produces itself can have beneficial effects on the brain. And Nutt and his colleagues have also found that THC use protects alcoholics from alcohol-induced brain damage.

Zimmer’s team is now planning human trials to find out whether older people can benefit from low doses of THC too and, if so, from what age it is beneficial. . .

Continue reading.

Written by LeisureGuy

10 May 2017 at 2:07 pm

The Yates Testimony and the White House Counsel

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Jack Goldsmith writes at Lawfare:

Sally Yates’s testimony yesterday calls into yet greater doubt the effectiveness of White House Counsel Don McGahn.  I want to emphasize up front what I have said in each of my critical posts on McGahn: He has an extremely difficult client, and it is sometimes hard to know whether the White House screw-ups that would normally be attributed to the White House Counsel should in fact be attributed to the Counsel’s difficulties in keeping a norm-breaking, truth-challenged president in line.  But the evidence seems strong that McGahn has exercised bad judgment during his brief tenure as White House Counsel.  Yates added to that evidence yesterday.

Rather than relisting McGahn’s sins as White House Counsel (which I have outlined here, here, here and here), I will limit myself to his dealings with former National Security Advisor Michael Flynn, which is what Yates discussed yesterday. This in a nutshell is some of what we knew before yesterday:

  • In March, Flynn registered as a foreign agent under the Foreign Agents Registration Act for actions as “an agent of a foreign principal” that his firm took the previous year and for which he should have registered the previous year. According to the Washington Post, Flynn’s attorneys told McGahn during the transition “that Flynn might need to register with the government as a foreign agent.”  The White House then said that McGahn was unaware of the details of Flynn’s work but did advise him that his personal lawyer should determine whether registration was appropriate. It was later reported that Flynn’s attorneys had further discussions with an unnamed White House attorney about the matter after the inauguration.  As I wrote about this matter: “It was incumbent on McGahn, who knew about Flynn’s foreign agent issue, to raise the issue with Flynn, to uncover all of the facts, and to counsel Flynn on whether and how he might resolve the issue before he assumed his very important White House post on January 20. McGahn failed in all of these duties.”
  • Before yesterday we knew that Yates informed McGahn in late January that Flynn had misled senior administration officials about his phone conversation with Russian Ambassador Sergey Kislyak.  We also knew, from Sean Spicer, that McGahn reviewed the Flynn matter after he spoke with Yates and “determined that there is not a legal issue” and “corroborated” the President’s instinctual view that Flynn “did not do anything wrong.”  Assuming this was an accurate representation of McGahn’s determinations, I wondered at the time how McGahn possibly could have reached this conclusion since he lacked all the facts and since the legality issue wasn’t his to make in any event—it was DOJ’s call.  As I argued at the time, “Even if McGahn strongly believed that Flynn was innocent, it would have been deeply imprudent to act on that belief in advising the President when there was an ongoing investigation focused squarely on the National Security Advisor and the White House more generally.” I added that it seemed like a “big mistake” for McGahn to conclude that Flynn’s actions did not raise a legal issue “when there is an ongoing FBI investigation centered on the White House that the White House Counsel could not have known everything about.”

After Yates’s testimony, we now know much more about what she told McGahn.  She “took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.”  She described this conduct to McGahn as “problematic in and of itself.”  She also expressed the Department’s belief that “the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true.”  She emphasized that the DOJ and intelligence community were not the only ones who knew about Flynn’s lies to the Vice President.  The Russians did as well and likely had proof, and that created “a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians.”  And finally, she told McGahn that the FBI had interviewed Flynn in the White House.

Especially coming against the background of knowing (and apparently doing nothing) about Flynn’s failure to report his foreign agent work, the information Yates conveyed should have set off loud alarm bells.  Yates and the Justice Department clearly viewed the matter—a National Security Advisor who misled the Vice President and the American people about his Russian contacts and “was compromised with respect to the Russians”—as extremely serious and urgent.

After receiving this information from Yates, McGahn called Yates back to the White House the next day to raise four topics:

The first topic in the second meeting was essentially why does it matter to DOJ if one White House official lies to another. The second topic related to the applicability of criminal statutes and the likelihood that the Department of Justice would pursue a criminal case. The third topic was his concern that their taking action might interfere with an investigation of Mr. Flynn. And the fourth topic was his request to see the underlying evidence.

The first question is puzzling on many levels.  Why would the White House Counsel ask DOJ whether it mattered if the National Security Advisor lied to the Vice-President and others?  Did he not understand or care about what Yates had told him the day before—that DOJ thought Flynn had badly misled the American people and was compromised by the Russians?  (Yates re-emphasized in response to the question that DOJ’s concerns involved “a whole lot more” than mere lies).  Why did he think this was a serious question to ask in these circumstances?  Was he trying to . . .

Continue reading.

Written by LeisureGuy

10 May 2017 at 1:32 pm

Jennifer Rubin asks, “Have you no sense of decency, Mr. Spicer, at long last?” (Answer seems to be “No, he does not.”)

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Rubin writes in the Washington Post:

On Tuesday, in the pre-James-Comey-firing world, Sean Spicer was asked why the president didn’t fire Michael T. Flynn as soon as then-acting attorney general Sally Yates provided evidence that he had lied to the vice president and therefore compromised himself with the Russians. Spicer declared at his daily press briefing: “The president does not want to smear a good man. Let’s look at, again, how this came down. Someone who is not exactly a supporter of the president’s agenda, who, a couple of days after this first conversation took place, refused to uphold a lawful order of the president’s. Who is not exactly someone who was excited about President Trump taking office or his agenda.”

Let’s count the things that are wrong with this:

1. Yates was not attempting to “smear” Flynn. She delivered a factual report of easily verified wrongdoing. She did not recommend Flynn’s firing. It was the administration that sat on stunning evidence of Flynn’s misdeeds. Apparently no one in the Trump team thought it important to find out whether what she was saying was true and then act on it in a timely manner.

2. A “good man”? A “good man” does not conceal payments from foreign governments and lie to the vice president about his contacts with Russian officials.

3. Trump’s excessive deference toward Flynn doesn’t occur in a vacuum. The public learned on Tuesday (and the president almost certainly before that) of a grand jury’s subpoena directed at associates of Flynn. This may well explain — what else does? — why he continues to defend the “honor” of a man who sparked the conflagration now consuming the presidency.

4. The smear of Yates. Spicer concocted a wholly baseless allegation that Yates was a political opponent of Trump, someone who was acting as a political operative, not as a 27-year veteran of the Justice Department. Her warning, of course, was on point — as we know, since Trump finally fired Flynn. So on what basis can Spicer still claim she was an unprincipled partisan?

5. Partisan paranoia prevented removal of a compromised national security adviser. That’s what Spicer is saying. No matter what an independent voice says, the Trump White House doesn’t believe it. This is putting loyalty above all other considerations. If you are with Trump, you cannot be wrong; if you are questioning his actions or choices, you cannot be right. That is the description of someone intellectually and temperamentally unfit to defend the United States. He believes only what and who he wants to believe. It sure does make him — and the country — vulnerable to threats and scandals, especially since the people with him are inexperienced, knowledgeable and unwilling to deliver bad news.

Spicer here exemplifies the compulsive dishonesty of an administration whose first instinct is to impugn others’ motives when their own are so obviously suspect. They practice the art of character assassination casually, without concern for their own credibility, let alone of those whom they slander. The term “McCarthyism” is vastly overused, but in watching the grotesque distortion of facts and cavalier indifference to preserving the standards of the offices these Trump underlings hold, one cannot help but recall this: . . .

Continue reading.

Written by LeisureGuy

10 May 2017 at 10:55 am

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